Excerpt: ...the court shall grant the motion only if it completely disposes of the defense. The plaintiff bears the initial burden to show there is no triable issue of material fact as to the defense and that he or she is entitled to judgment on the defense as a matter of law. In so doing, the plaintiff must negate an essential element of the defense, or establish the defendant does not possess and cannot reasonably obtain evidence needed to support the defe...

Excerpt: ...ause of action. To deny the motion to strike allegations concerning punitive damages. To grant the motion to strike the prayer for attorney's fees. Explanation: Demurrer: First Cause of Action – Quiet Title A cause of action for quiet title must be verified and include the following: 1) a description of the real property that is the subject of the action, including both the legal description and street address; 2) the title or interest of the p...

Excerpt: ...an be used to: “(a) Strike out any irrelevant, false, or improper matter inserted in any pleading”; or “(b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.”(Code Civ.Proc. §§ 431.10, subd.(b); 436, subd.(a).) A court will “read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their ...

Excerpt: ...e evidence' and all of the 'inferences' reasonably drawn there from and must view such evidence and such inferences 'in the light most favorable to the opposing party.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) In making this determination, courts usually follow a three‐prong analysis: identifying the issues as framed by the pleadings; determining whether the moving party has established facts negating th...

Excerpt: ... damages and non‐economic, emotional distress damages, with leave to amend. (Code Civ. Proc. §§ 435, 436.) Plaintiff shall serve and file his first amended complaint within twenty days of the date of service of this order. All new allegations shall be in boldface. Explanation: Demurrer: First, the entire complaint is uncertain in that plaintiff has not alleged clearly which defendants committed which wrongful acts against him, or how their ac...

Excerpt: ...t of $950.00 are ordered against plaintiff's counsel Edward Kerley, and his law firm, Kerley Schaffer LLP, and shall be paid to the court no later than Wednesday, October 16, 2019. Explanation: Sanctions under Code of Civil Procedure section 128.5 Sanctions under this statute must be denied, since subdivision (i) of Code of Civil Procedure Section 128.5 expressly states that this sanctions statute “applies to actions or tactics that were part o...

Excerpt: ... action settlement, it must grant preliminary certification of the proposed class. (Cal. Rules of Court, rule 3.769(d).) Before a court may approve the settlement, the settlement class must satisfy the normal prerequisites for a class action. (Amchem Prods., Inc. v. Windsor (1997) 521 US 591, 625‐27.) However, because a trial court is considering certification in a settlement context, the court's review of certification is lessened, particularl...

Excerpt: ...to consider late‐filed papers so long as the responding party has been given adequate notice and an opportunity to respond. (See Michael H. v. Gerald D. (1987) 191 Cal.App.3d 995, 1004.) Defendants provided a timely, complete reply to Plaintiff's opposition. Plaintiff's late papers will be considered. Burden on Summary Judgment In ruling on a motion for summary judgment or summary adjudication, the court must “consider all of the evidence'...

Excerpt: ...g Materials Co. Tentative Ruling: To overrule all special demurrers. To overrule all general demurrers to the fourth through eighth causes of action. To sustain the general demurrers to the second and third causes of action with leave to amend. To grant the motions to strike allegations relating to punitive damages with leave to amend. To deny the balance of the motions to strike. The plaintiffs shall file and serve a Second Amended Complaint wit...

Excerpt: ...lly and Singh's motion to strike the request for attorney's fees, and to deny as to the remaining requests. (Code Civ. Proc. §436.) Explanation: Demurrer Special demurrer Special demurrers are disfavored, “and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (Lickiss v. Financial Industry Regulatory Authority (2012) 208 Cal.App.4th 1125, 1135; Merlino v. West Coast Macaroni Mfg. Co. (1949) ...

Excerpt: ...ins unanswered, as plaintiff has failed to provide any valid basis to determine potential damages. Considering that counsel interviewed some fifty of the class members (almost 1/6th of the class) and obtained payroll and time records, the employment of an expert to determine a violation rate and consequent probable damages in a statistically valid manner should be relatively uncomplicated, but is necessary. b. Standards An agreement of the partie...

Excerpt: ...construe the failure to file a memorandum as an admission that the motion is not meritorious and there is cause for its denial. (Cal. Rules of Court, rule 3.113, subd. (a).) Nonetheless, it is assumed that Petitioner is seeking relief from dismissal under Code of Civil Procedure section 473, and the motion has been analyzed based on that assumption. The reason Petitioner gives to justify relief from dismissal is that he did not know about the Ord...

Excerpt: .... To impose monetary sanctions against defendant General Motors LLC, in the amount of $810. Payment shall be made to the Knight Law Group within 30 days of the clerk's service of this minute order. Explanation: Disobeying a court order to provide discovery is a misuse of the discovery process. (Code Civ. Proc., § 2023.010, subd. (g).) Courts may impose a monetary sanctions for misuse of the discovery process. (Code Civ. Proc., § 2023.030, subd....

Excerpt: ...sted in the deposition notice shall be provided no later than 30 days from the date of this order. To deny the moving party's request for monetary sanctions. To grant the motion for leave to file a First Amended Complaint. The plaintiff is granted 10 days leave to file the proposed First Amended Complaint. The time in which the complaint can be amended will run from service by the clerk of the minute order. Explanation: Motion to Compel An order ...

Excerpt: ...Rules of Court, rule 3.350(b).) A copy of this order shall be filed in each case, and all subsequent documents shall be filed only in the lead case. (Cal. Rules of Court, rule 3.350(c).) Explanation: “A consolidation of actions does not affect the rights of the parties. The purpose of consolidation is merely to promote trial convenience and economy by avoiding duplication of procedure, particularly in the proof of issues common to both actions....

Excerpt: ... to defendant if leave is granted on the eve of trial. “ ‘Code of Civil Procedure section 473, which gives the courts power to permit amendments in furtherance of justice, has received a very liberal interpretation by the courts of this state.... In spite of this policy of liberality, a court may deny a good amendment in proper form where there is unwarranted delay in presenting it.... On the other hand, where there is no prejudice to the adv...

Excerpt: ...te of service of this order. Explanation: Plaintiff has proved up the basic elements of his breach of contract claim, including the existence of a contract between the parties, his performance under the agreement, defendant's breach, and resulting damages. (Coles v. Glaser (2016) 2 Cal.App.5th 384, 391.) Plaintiff's evidence shows that he entered into a written contract with defendant in which plaintiff was to provide assistance in obtaining unpa...

Excerpt: ... at 3:30 p.m. in Department 503, as the return time for a report on distribution and possible amendment of the judgment pursuant to Code of Civil Procedure section 384(b). Declarations need be filed by April 17, 2010. To grant attorney's fees in the amount of $250,000, to be distributed 75 percent to the Boucher firm, 17.5 percent to the Selik firm, and 7.5 percent to the Majarian firm. To grant costs in the amount of $8,000 and an incentive awar...

Excerpt: ...§ 1987.1; 2020.220.) Patient A shall appear for his deposition within 15 days of the date of service of this order. To deny defendants' request for an evidence sanction barring the use of Patient A's testimony if he fails to appear for his deposition, as there is no statutory authority for such sanctions as to a non‐ party witness. However, Patient A may be subject to other sanctions, including contempt of court, if he fails to appear for his ...

Excerpt: ...court within 5 days of the clerk's service of this minute order. Explanation: In ruling on a motion for summary judgment or summary adjudication, the court must “consider all of the evidence' and all of the 'inferences' reasonably drawn there from and must view such evidence and such inferences 'in the light most favorable to the opposing party.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) In making this de...

Excerpt: ...sion (f)(2). Explanation: Under Code of Civil Procedure section 437c, subdivision (f)(2), “[a] party shall not move for summary judgment based on issues asserted in a prior motion for summary adjudication and denied by the court unless that party establishes, to the satisfaction of the court, newly discovered facts or circumstances or a change of law supporting the issues reasserted in the summary judgment motion.” (Code Civ. Proc., § 437c, ...

Excerpt: ...les of Court, Rule 3.1350(b).) This action was filed by plaintiff Cold Springs against Wells Fargo only, contending that plaintiff is the only entity with right to the funds on deposit with Wells Fargo in accounts XXXX‐1634, XXXX‐5109, XXXX‐8420, and XXXX‐8655. Wells Fargo filed a Cross‐Complaint in Interpleader on July 30, 2018, naming Cold Springs and Santa Rosa (the only other tribe claiming an interest in the accounts) as cross‐de...

Excerpt: ... agreement of the parties provides for fee shifting. [Citation.] Labor Code section 218.5 requires the awarding of attorney's fees to the prevailing party ‘[i]n any action brought for the nonpayment of wages, fringe benefits, or health and welfare or pension fund contributions.' This provision awards fees to the prevailing party whether it is the employee or the employer; it is a two‐way fee‐shifting provision. However, Labor Code secti...

Excerpt: ...n.” (Code Civ. Proc. § 1033.5, subd. (c)(4).) All allowable costs must be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation, and they must be reasonable in amount and actually incurred. (Code Civ. Proc. § 1033.5, subd. (c)(1), (2) and (3).) On motion to tax costs, the initial burden depends on the nature of the costs that are being challenged. [T]he mere filing of a motion to ...

Excerpt: ...right to file this case – as a result of defendant's refusal to pay mediation costs, pursuant to Roldan v. Callahan & Blaine (2013) 219 Cal.App.4th 87 and Tillman v. Rheingold, Valet, Rheingold, Shkolnik & McCartney (9th Cir. 2016) 825 F.3d 1069. On a procedural note, defendant argues that this court should not consider plaintiff's opposition because the arbitration agreement is governed by the CAA, which requires plaintiff to respond within 10...